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State v. McCann

Court of Appeals of Iowa

March 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MARC ASHLEY MCCANN, Defendant-Appellant.

         Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.

         A defendant appeals his conviction for possession with intent to deliver raising evidentiary issues and claims of ineffective assistance of counsel.

          Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney General, for appellee.

          Considered by Doyle, P.J., McDonald, J., and Scott, S.J. [*]

          SCOTT, SENIOR JUDGE

         Marc McCann appeals his conviction for possession of a controlled substance-methamphetamine-with intent to deliver, as a second or subsequent offender. See Iowa Code §§ 124.401(1)(c)(6), .411, .413 (2016). He raises a number of claims on appeal including: (1) the court erred in overruling his objection to testimony he believed constituted speculation; (2) the court erred in permitting an officer to comment on his refusal to answer questions during his interrogation; (3) the court erred in permitting the trial to go forward in his absence; and (4) the evidence was insufficient to support his conviction. Because we find the evidence was sufficient and no error at law occurred, we affirm McCann's conviction.

         I. Background Facts and Proceedings.

         While attempting to effectuate civil service of process, Story City Police Officer Dustin Demarest smelled marijuana emanating from a trailer. When the occupant of the trailer, Kyle Borton, opened the door, the smell intensified. Officer Demarest later obtained a search warrant and returned to the trailer the following day. At that time, Borton and his girlfriend were present in the trailer, along with McCann, who owned the trailer, and McCann's girlfriend. When police entered the trailer, Borton's girlfriend fled from the living room to the bathroom. McCann was located in the bathroom standing over the toilet, and his girlfriend was standing in the bathroom by the vanity.

         During the search of the trailer, officers located drug paraphernalia in the bedroom along with McCann's belongings. Shortly after the search began, McCann asked to use the toilet. Officers first searched the bathroom and located baggies containing methamphetamine in the toilet bowl. McCann was charged with possession with intent to deliver.

         The case proceeded to a jury trial in December 2016, and the jury returned a guilty verdict. After denying the posttrial motions, the district court sentenced McCann to ten years in prison with a one-third mandatory minimum term. The court, however, decided not to enhance the sentence under section 124.411. McCann appeals.

         II. Scope and Standard of Review.

         We review the district court's evidentiary rulings regarding the admission of opinion testimony for an abuse of discretion. State v. Kinsel, 545 N.W.2d 885, 889 (Iowa Ct. App. 1996) ("[A] manifest abuse of discretion must be found before we will interfere with a trial court's ruling on the admissibility of opinion testimony."). We review de novo McCann's claims that implicate his constitutional rights to the effective assistance of counsel and the right to be present for trial. See Nguyen v. State, 707 N.W.2d 317, 323 (Iowa 2005) (noting standard of review for claims of ineffective assistance of counsel); State v. Hendren, 311 N.W.2d 61, 62 (Iowa 1981) (noting the right to be present for trial is a constitutional right and we review de novo the facts to determine whether the defendant's absence from trial is voluntary). Finally, we review for correction of errors at law McCann's challenge to the sufficiency of the evidence. See State v. Ortiz, 905 N.W.2d 174, 179 (Iowa 2017).

         III. Speculation Objection.

         McCann first claims the court should not have permitted Officer Demarest to testify regarding McCann's knowledge of the other drugs found in the trailer. He asserts such information was outside Officer Demarest's knowledge because the officer had no way to look inside his mind. He asserts his attorney's "speculation" objection should have been sustained.

         During the redirect examination of Officer Demarest, the prosecutor asked:

Q. You stated just previously that the main reason that you felt the defendant was in possession of the drugs is because of his proximity to the toilet. Anything else that led you to believe that these were the defendant's drugs?
A. Well, all of the paraphernalia and all of the other stuff that I found in the bedroom. All of the spent needles and spoons and cotton swabs.
Q. You said that the others in your opinion knew about the drugs?

A. (No audible response was given by the witness.)

Q. Is that in your opinion?
A. Yes, that's my opinion.
Q. So is it fair to say that if there were other drugs found, that the defendant would have known about ...

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